EEA FP Application in Poland

Post by **EUsmileWEallsmile** » Fri May 25, 2012 12:52 pm

Jambo wrote: Also as said, as the legal requirement is 6 months and it is a free application, there isn't a real incentive for the HO to put more resources on this.

This is probably more likely to account for the difference!

Post by **EUsmileWEallsmile** » Fri May 25, 2012 1:01 pm

Basically, my conclusion is that matters are a little vague.

Family permit: does not say on the permit whether someone can work or not.
COA: can work if special number is phoned
Residence Card: employment and business activities allowed.

SI (excuses) http://www.legislation.gov.uk/uksi/2007 ... edule/made

Family permit - not mentioned
COA: explicitly mentioned along with the requirement to phone
Residence Card - explicitly mentioned

What's an employer to make of all this?

gehrig · Post by **gehrig** » Sun May 27, 2012 4:44 pm

SI (excuses) http://www.legislation.gov.uk/uksi/2007 ... edule/made

Family permit - not mentioned

True, the FP isn't mentioned by name:

A residence card or document issued the Home Office or the Border and Immigration Agency to a family member of a national of a European Economic Area country or Switzerland.

but can you suggest anything else that could be described as a document in the above quote, and that isn't a residence card? Otherwise, what is the "or document" there for?

That, together with the same text and a picture of the EEA FB on p35 of the Comprehensive Guidance seem to indicate the FP is intended to provide an excuse for employers.

gehrig · Post by **gehrig** » Sun May 27, 2012 4:47 pm

"document" is a broad term that could cover the FP

Post by **Jambo** » Sun May 27, 2012 5:40 pm

This is my view also. EUsmileWEallsmile argument is that if this is the case, why didn't they explicitly write "Family Permit" and that a worried employer won't count on the broader definition of "document". At the end of the day, it all comes to how reasonable is your employer even if the law is on your side.

Post by **EUsmileWEallsmile** » Sun May 27, 2012 7:51 pm

Jambo wrote:At the end of the day, it all comes to how reasonable is your employer even if the law is on your side.

I would agree with this.

Post by **EUsmileWEallsmile** » Sun May 27, 2012 7:55 pm

gehrig wrote:"document" is a broad term that could cover the FP

They could have written a document issued under the 2006 immigration regulations, but they didn't. They did explicitly write COA and RC. COA and RC are very strong excuses, family permit perhaps is not.

Post by **EUsmileWEallsmile** » Sun May 27, 2012 7:56 pm

gehrig wrote: That, together with the same text and a picture of the EEA FB on p35 of the Comprehensive Guidance seem to indicate the FP is intended to provide an excuse for employers.

Remember the picture is actually of an EEA family permit issued under the 2000 regulations. This may not be an accident.

Post by **EUsmileWEallsmile** » Sun May 27, 2012 8:18 pm

Imagine the following scenario...

Non-EU spouse works in the UK, for simplicity let's say the EU spouse was initially exercising treaty rights, but for some reason stopped (let's say they returned to their home country). The non-EU spouse now has no entitlement to work. The border agency checks up and the employer is discovered to have an employee with no entitlement to work. The border agency considers imposing a fine.

The scenario above is the same for the following cases, I just want to explore what might happen depending on what documentation the non-EU national had and what checks the employer made.

1. Non EU had residence card and employer took a copy as prescribed in the guidance. No fine as he has a statutory excuse.
2. Non EU had COA and the employer had phoned the helpline and took a copy as prescribed in the guidance. No fine as he has a statutory excuse.
3. Non EU had family permit, took a copy and it's still valid. I honestly don't know if the employer has a valid excuse or not.
4. Non EU had no documentation, but it's clear that he was initially in the UK legally and allowed to work. Employer does not have a statutory excuse.
5. Employer did not check anything. Employer does not have a statutory excuse.

Ask yourself, as an employer which scenario would you rather be in 1, 2, 3, 4 or 5?

gehrig · Post by **gehrig** » Sun May 27, 2012 9:37 pm

Non-EU spouse works in the UK, for simplicity let's say the EU spouse was initially exercising treaty rights, but for some reason stopped (let's say they returned to their home country). The non-EU spouse now has no entitlement to work. The border agency checks up and the employer is discovered to have an employee with no entitlement to work. The border agency considers imposing a fine.

That's a good point to consider. My reading is that page 32 of the Comprehensive Guidance deals with exactly that situation. According to that page, the employer has an excuse for up to 12 months. If the law-breaking non-EU spouse does what's outlined by EUsmile within 12 months after the employer checked the document, the employer isn't responsible. But the FP is only valid for 6 months, thus the next time the employer checks documents (after 12 months) the non-EU spouse had better show a valid document. The HO/BA would have investigated whether the spouse is exercising treaty rights in issuing that document.

For my own case, it seems my employer shouldn't have a problem (the job is an 11-month contract that I'm applying for.)

gehrig · Post by **gehrig** » Sun May 27, 2012 9:55 pm

Remember the picture is actually of an EEA family permit issued under the 2000 regulations. This may not be an accident.

That's an interesting point. How could we get an answer for that? How could one find out why they didn't use the newer FP and whether there's a reason for it?

And if the current EEA FP doesn't provide an excuse, what is the basis in EU law for it not being an acceptable excuse?

Post by **EUsmileWEallsmile** » Sun May 27, 2012 11:00 pm

gehrig wrote:

That's a good point to consider.

This was all hypothetical, the reason I posted it was to show that an employer might be nervous and think twice about accepting a family permit as an excuse.

Post by **EUsmileWEallsmile** » Sun May 27, 2012 11:05 pm

gehrig wrote:
Remember the picture is actually of an EEA family permit issued under the 2000 regulations. This may not be an accident.
That's an interesting point. How could we get an answer for that? How could one find out why they didn't use the newer FP and whether there's a reason for it?

It's interesting that some EU countries used to accept an EEA family permit under the 2000 regs in lieu of an article 10 residence card (this is a bit technical and not related to working). Perhaps they did so because there was something special about the 2000 regs family permit?

Maybe it then found its way into the guidance (the same picture is in the old guidance), but was never deleted as the guidance was updated. None of these will be valid now as the 2000 regs were revoked in 2006, but they would still have been some kicking about until 2007 when the excuses order was made.

Just a thought....

Post by **EUsmileWEallsmile** » Sun May 27, 2012 11:06 pm

Example here

http://www.maec.es/subwebs/Consulados/E ... OC.EEA.pdf

Post by **EUsmileWEallsmile** » Sun May 27, 2012 11:08 pm

Another here:

http://www.dutchembassyuk.org/consular/index.php?i=261

Post by **EUsmileWEallsmile** » Sun May 27, 2012 11:10 pm

gehrig wrote: And if the current EEA FP doesn't provide an excuse, what is the basis in EU law for it not being an acceptable excuse?

There isn't one. What one needs to understand is that a non-EU family member whose family member exercises treaty rights can not be working illegally. The primary UK legislation reflects that.

The issue only arises if one manages to get EU documentation and later turns out not to be a family member exercising treaty rights. In the example I gave, the EU principle left the UK.

Post by **EUsmileWEallsmile** » Sun May 27, 2012 11:23 pm

gehrig wrote:[How could one find out why they didn't use the newer FP and whether there's a reason for it?

Or it could have been an oversight, ie a mistake. Who knows?

gehrig · Post by **gehrig** » Mon May 28, 2012 5:36 am

[quote=EUsmileWEallsmile]The issue only arises if one manages to get EU documentation and later turns out not to be a family member exercising treaty rights. In the example I gave, the EU principle left the UK.[/quote]

The most reasonable way to understand things at this point is that the FP clearly allows employment, but the way the UK presents the document, the legislation and the Guidance is unclear. Maybe being vague allows for different ways to prove that one is a family member. My guess is that the vagueness is there precisely to make employers hesitant to hire the holder of an FP. The UK govt would have an interest in doing that.

The EU principle could just as well leave when the non-EU member gets a RC. The fact that a FP permit expires after six months and the employer is required to re-check docs after 12 mos pretty clearly anticipates that problem.

Post by **EUsmileWEallsmile** » Mon May 28, 2012 6:39 pm

gehrig wrote:
The most reasonable way to understand things at this point is that the FP clearly allows employment...

None of the documentation "allows employment" as such. Employment is allowed irrespective of documentation provided that the non-EU national is the family member of an EU national exercising treaty rights.

Persuading an employer that he risks no fine is another matter.

gehrig · Post by **gehrig** » Mon Jun 18, 2012 1:16 pm

As an update on the original post. The employer I was talking about agreed that an EEA FP would allow me to work for a twelve month period.

It seems they've made the correct interpretation of the Comprehensive Guidance for Employers.

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EEA FP Application in Poland

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